Opinion
No. 2003/8830.
10-10-2014
Robert F. SZALAPSKI, Plaintiff, v. Jeanne T. SCHWARTZ n/k/a Jeanne T. Szalapski, Defendant.
Kaman Berlove, Marafioti, Jacobstein & Goldman, LLP, Stephen M. Jacobstein, Esq., of Counsel, Attorney for Plaintiff. Jeanne T. Schwartz n/k/a Jeanne T. Szalapski, pro se Defendant.
Kaman Berlove, Marafioti, Jacobstein & Goldman, LLP, Stephen M. Jacobstein, Esq., of Counsel, Attorney for Plaintiff.
Jeanne T. Schwartz n/k/a Jeanne T. Szalapski, pro se Defendant.
Opinion
RICHARD A. DOLLINGER, J.
The court must resolve whether a change in a teenaged child's preference on where to live, standing alone, is sufficient to justify a modification of a prior custody and residence order without a hearing. In this difficult case, a father seeks sole custody of the youngest of his three sons. Currently, the mother has sole custody, but the child lives with each parent on an almost equal basis. The father has not visited with his older two sons for years.
The father now brings an order to show cause seeking to change the custody and residence of his youngest son, enroll him in a new school, and prohibit the dissemination of information regarding his application to his other children. The father's original affidavit before this court is littered with hearsay, as he related alleged comments from his son about the son's relationship with his mother, his two older brothers and half-brother, and life in his mother's household. The wife opposes the change in custody, challenging the father's description of her household and her relationship with her son, and arguing that the father had failed to show a change in circumstances. Tthe attorney for the child advocated that the child, now age 13, had a newly-declared preference to live with his father, and did not want significant contact with his mother. The court granted an interim change in primary residence of the child, denied the application to change the child's school, and after the mother contested whether the attorney for the child was accurately representing her son's preference, conducted a Lincoln hearing with the child. The child's attorney was present at the hearing.
Lincoln v. Lincoln, 24 N.Y.2d 270 (1969)
After the Lincoln hearing, the court informed the parties that the attorney for the child had accurately presented the child's strong preference to live with his father, and have minimal contact with his mother. In reviewing this matter, the court notes that the father, relaying observations about his son, claims that the mother's household, featuring older brothers, and lots of activity, is not conducive to his youngest child's temperament and skills. The father avers that the child, when coming to his house after spending time with his mother, is sleepy and unkempt, often venting about his frustration of competing for attention among the many siblings in his mother's household. The father produced a series of emails which, he claims, document the child's frustrations encountered in his mother's household. This court, having read the emails, declines to draw any conclusion—one way or the other—from them, or extract any adverse inferences against the mother's household. The child's apparent dissatisfaction seems aimed at many targets, and this court refuses to credit the emails as indicative of the child's assessment of his own best interests.
The mother claims—virtually without contradiction—that her household has been nurturing and supportive of the child, even though the presence of other siblings and children and the mother's significant work schedule can create a somewhat complicated environment. The mother notes that the child is mature and bright, a fact that the Lincoln hearing amply confirmed. She argues that the child's maturity and perceptiveness are evidence that her home life has produced a confident, capable, and bright child, and that his best interests would be served by continuing primary residence there.
In a sworn submission to the court on the date of oral argument, the court, over the father's objection, read the mother's sworn statement. In it, she complains that unpaid child support by the father has caused her to work extra hours, stifling her time with this child. The issue of unpaid child support is not before this court. The court refuses to consider any purported tie between allegedly unpaid support and the mother's time and attention devoted to the child who is the subject of this petition. The mother can pursue those remedies in another forum.
This court, in weighing the evidence, can consider the comments of the child in the Lincoln hearing, but it will not disclose those comments. Matter of Cisse v. Graham, 120 AD3d 801 (2nd Dept.2014) (court declined to describe the in camera examination of the child, citing Matter of Lincoln v. Lincoln, 24 N.Y.2d 270 [1979] ).
There is no undisputed evidence that suggests either parental household would not serve the child's interests. There is no undisputed evidence of any adverse factors that make one environment more or less hospitable than the other. The mother's household
has more inhabitants, which naturally disperses parental attention. The father's household features no other siblings and the child, if residing with his father, would be the sole object of the father's attention. While there are statements, on both sides, regarding alleged attempts by each parent to alienate the child from the other, the court, after its interview with the child, concludes that the child has substantially—if not totally—discounted the parental attempts to alienate his affections. In this court's view, if attempting to prove a change of circumstances were simply a comparison of the households or the child-rearing skills of the parents, the husband's application would fall short of demonstrating a prima facie case. His son has lived with his mother, as the primary residential parent, for more than five years. There is no evidence that he lacks academic success, suffers from any medical or psychological difficulties or encounters any other difficulties, in his mother's home.
Matter of Lombardi v. Valenti, 120 AD3d 817 (2nd Dept.2014) (existing court-sanctioned child custody arrangement, there must be a showing of a change in circumstances, such that the modification is required to protect the best interests of the child); Matter of Anderson v. Roncone, 81 AD3d 1268 (4th Dept.2011) (an order of visitation cannot be modified unless there has been a sufficient change in circumstances since the entry of the prior order [that], if not addressed, would have an adverse effect on the child['s] best interests).
However, one fact is undisputed: the child wants to live with—and primarily reside with—his father and have only minimal contact with his mother. The change in the child's preference of primary residence is the only undisputed factor that has changed during the last five years—the child originally wanted to live with his mother and now wants to live with his father. Although a child's preferences are not determinative of how a court should decide questions of custody and visitation, they may be instructive as to what is in the child's best interests. Matter of Cisse v. Graham, 120 AD3d 801 (2nd Dept.2014). While this court has found cases that suggest that the express wishes of older and more mature children can support the finding of a change in circumstances, in every case that intones that proposition, the court changed custody or primary residence only after a hearing and after the consideration of other factors. See Matter of Dorsa v. Dorsa, 90 AD3d 1046 (2nd Dept.2011) (the children, aged 13 and 15, expressed “a strong preference” to change residency, but the court, after a hearing, also held that the “mother had a greater sensitivity to the children's particular emotional psychological needs”). In Oddy v. Oddy, 296 A.D.2d 616 (3rd Dept.2002), the court, after a trial, held that a change in custody was required. The court concluded that forcing the child to remain with the father against her will would likely damage her relationship with him and that the 13–year–old child had repeatedly expressed a preference to live with the preferred parent for seven years, and that at her age, her preference was entitled to greater weight. In Repsher v. Finney, 11 AD3d 1074 (3rd Dept.2013), the wishes of a 15–year–old were worth “serious consideration,” but other evidence was necessary to alter the longstanding and otherwise successful custodial arrangement. In Burch v. Willard, 57 AD3d 1272 (3rd Dept.2008), the wishes of 12–year–old and 13–year–old children provide some support for a finding of a change in circumstances, but the preference was combined with evidence that the father unreasonably restricted access to the mother, his conflicts with the mother impacted the children, and that he failed to consult with the mother on medical and educational issues. In Parchinsky v. Parchinsky, 114 AD3d 1040 (3rd Dept.2014), 13 and 15–year–old sons expressed a “strong and openly-expressed preference” to reside with their father. Even though the mother was credited by the family court with her sons success, both academically and athletically, in her care, the court held that her alienation of the child from the father and her interference with that relationship, combined with the sons' preference and the father's testimony that he “would encourage visits with the mother,” lead the court to change primary residence to the father. See also Casarotti v. Casarotti, 107 AD3d 1336 (3rd Dept.2013) (a 14–year–old child's preference that she wanted to spend more time with her father was entitled to “great weight,” but custody was only changed because of additional evidence of a breakdown in parental communication and proof that the mother refused to facilitate a relationship between the father and child).
The father, in seeking the change, advances as support a recent Fourth Department decision, Rulinsky v. West, 107 AD3d 1507 (4th Dept.2013). In that case, the mother sought to terminate the visitation rights of an incarcerated father. The 10–year–old child no longer wanted to visit his father and the trial court accorded with the child's preference. But, the child's strong preference, standing alone, was insufficient to justify the change and the trial court noted that the father was “using visitation time to attempt to reconcile with the mother rather than to interact with their child” and there was evidence establishing the father's lack of prior contact with the child.
In short, this court concludes that the undisputed change in the child's preference establishes a prima facie case that a change of primary residence and custody might be in the child's best interests. But, this court has not found any prior case law that indicates that a change in the child's preference—alone—justifies a change in custody or primary residence. Instead, the New York courts have carefully directed that while the child's preference is entitled to greater weight as the child ages, that weight—even when given its full heft—does not spare a court from reaching the conclusion that the preference accords with the child's best interests. Even Rulinsky v. West, cited by the father as support for his claims, was only decided after a full evidentiary hearing. See also Matter of Tuttle v. Mateo, 2014 N.Y. Slip Op 06761 (4th Dept.2014) (although relationship between child and mother had “deteriorated significantly” and the child no longer wished to have visitation with the mother, the matter was remitted for a hearing). This requirement—that a court conclude that a child's preference is supported by other facts—is consistent with the notion, well-established in New York, that a child, even a mature and rational one, cannot solely-decide what their best interests are, instead a court must decide that question. To hold otherwise, would allow the child to dictate his own best interests—“drive the bus,” so to speak. But, deciding which parent “drives the bus” is a decision, based on best interests, that is exclusively delegated to this court. The child in this case gets to say where he prefers to go, but he cannot sit behind the wheel.
In deciding whether joint custody would be appropriate as an alternative to a transfer of sole custody, this court notes that both sides agree on one undisputed fact: the parents cannot communicate and that lack of parental communication is fatal to joint custody in this case. Matter of DiMele v. Hosie, 118 AD3d 1176, 1178 (3rd Dept.2014) (although an award of joint custody is an aspirational goal in every custody matter, such an award is not feasible where, as here, the parties' relationship and history evidences an inability to work and communicate with one another in a cooperative fashion).
This court concludes that the change in preference by the child in this instance creates a prima facie entitlement by the petitioning parent to have the court decide whether the best interests of the child would be served by changing residence or custody. In determining the best interest of the children, courts must view the “totality of the circumstances” Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 96 (1982) ; Filippi v. Filippi, 118 AD3d 939 (2nd Dept.2014). Those factors include (1) the original placement of the child, (2) the length of that placement, (3) the child's desires, (4) the relative fitness of the parents, (5) the quality of the home environment, (6) the parental guidance given to the child, (7) the parent's financial status, (8) his or her ability to provide for the child's emotional and intellectual development, and (9) the willingness of the parent to assure meaningful contact between the child and the other parent. Matter of Clouse v. Clouse, 110 AD3d 1181 (3rd Dept.2013) ; Matter of O'Connell v. O'Connell, 105 AD3d 1367 (4th Dept.2013). To decide the child's best interests in this case, given disputes over the status of the divergent households and the child's apparent success to date in his mother's household, disputes over his conflicts with other siblings, and his affinity with his father on other matters, this court will need a hearing. At that hearing, the various factors that characterize a best interests determination—the relative fitness of each parent, stability of the parent and their household, past performance, and home environment of the parents, as well as their ability to guide and nurture the children and foster a relationship with the other parent—would all be before this court.
One aspect of this matter is also undisputed: the parents have demonstrated a distinct inability to communicate, which makes this case a choice between parents over who should have sole custody. The level of acrimony between the two parents precludes a joint custody arrangement. Matter of Flores v. Mark, 107 AD3d 796, 797 (2d Dep't 2013) (relationship between the parties has become so antagonistic that they are unable to communicate or cooperate on matters concerning the subject child and hence, joint custody was no longer an appropriate arrangement).
This court is also cognizant of the Fourth Department's observation in Matter of O'Connell v. O'Connell:
In determining whether the custodial parent can continue to provide for the child's various needs, the court must be cognizant of the individual needs of each child. It is, of course, entirely possible that a circumstance such as a total breakdown in communication between a parent and child that would require a change in custody would be applicable only as to the best interests of one of several children although sibling relationships should not be disrupted unless there is some overwhelming need to do so.
105 AD3d at 1368, citing Eschbach v. Eschbach, 56 N.Y.2d 167, 174 (1982). This factor, in evaluating best interests, may be especially pertinent here where the child seeking to change primary residence has two other siblings who reside with his mother and with whom the father has no relationship.
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This court, having experienced the anguish of the mother representing herself in this court, the preference of the child, and the determination of the father, would, if it could express its own preference, prefer that this matter be ended without further tension for the child or either parent. But, this court will not make a best interests determination based solely on the child's preference without affording both sides the chance to offer proof on their different perspectives.
The husband's application to change custody and residence is reserved until a hearing on the best interests of the child. In the meantime, the temporary order remains in place. The child is ordered to participate in visitation with his mother consistent with the order. The court will schedule a hearing.